Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 00:19:01 (UTC).

ROBERT SCOTT SHTOFMAN VS JULIE C LIM ET AL

Case Summary

On 02/19/2016 ROBERT SCOTT SHTOFMAN filed a Contract - Other Contract lawsuit against JULIE C LIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ERNEST HIROSHIGE and MICHELLE R. ROSENBLATT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1057

  • Filing Date:

    02/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ERNEST HIROSHIGE

MICHELLE R. ROSENBLATT

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

SHTOFMAN ROBERT SCOTT

LAW OFFICES OF ROBERT SCOTT SHTOFMAN

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

ARCH INSURANCE GROUP INC.

LOPEZ GLORIA

LAW OFFICES OF JULIE C. LIM

LIM JULIE C.

ALLIANCE UNITED INSURANCE COMPANY

21ST CENTURY CENTENNIAL INSURANCE CO.

DOES 1-50

REED NANETTE GDOE 27

LIM JULIE C. DBA LAW OFFICES OF JULIE C. LIM

MURCHISON & CUMMING LLPDOE 26

JULIE C. LIM DBA LAW OFFICES OF JULIE

SHTOFMAN ROBERT SCOTT

LAW OFFICES OF ROBERT SCOTT SHTOFMAN

ZOES 1 TO 25 INCLUSIVE

Not Classified By Court

STOUGH DEBORAH L.

LAW OFFICES OF ROBERT SHTOFMAN

TEST PARTY FOR TRUST CONVERSION

SMITH SONIA RENEE

6 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

LAW OFFICES OF ROBERT SCOTT SHTOFMAN

Defendant, Respondent and Cross Plaintiff Attorneys

LIM JULIE C. ESQ.

WHITE PAUL S. ESQ.

BRADLEY & GMELICH

FARRELL EDMUND G. ESQ.

 

Court Documents

SUMMONS ON SECOND AMENDED COMPLAINT

12/28/2017: SUMMONS ON SECOND AMENDED COMPLAINT

Minute Order

2/15/2018: Minute Order

OPPOSITION TO DEFENDANTS MURCHISON & CUMMING, LLP AND NANETTE G. REED'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT; ETC

3/14/2018: OPPOSITION TO DEFENDANTS MURCHISON & CUMMING, LLP AND NANETTE G. REED'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT; ETC

PROOF OF SERVICE OF MURCHISON DEFENDANTS': 1. NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT; ETC.

5/21/2018: PROOF OF SERVICE OF MURCHISON DEFENDANTS': 1. NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT; ETC.

DECLARATION OF JULIE C. LIM IN SUPPORT OF DEMURRER TO PLAINTIFF ROBERT SCOTT SHTOFMAN'S THIRD AMENDED COMPLAINT

5/21/2018: DECLARATION OF JULIE C. LIM IN SUPPORT OF DEMURRER TO PLAINTIFF ROBERT SCOTT SHTOFMAN'S THIRD AMENDED COMPLAINT

NOTICE OF RULING

6/14/2018: NOTICE OF RULING

DEFENDANTS JOINT STATEMENT

7/18/2018: DEFENDANTS JOINT STATEMENT

CERTIFICATION OF NOTICE OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR LEAVE TO CONDUCT DISCOVERY

7/19/2018: CERTIFICATION OF NOTICE OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR LEAVE TO CONDUCT DISCOVERY

DEFENDANT, ALLIANCE UNITED INSURANCE COMPANY'S NOTICE OF CHANGE OF DATE, TIME AND DEPARTMENT FOR HEARING ON IT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

4/7/2016: DEFENDANT, ALLIANCE UNITED INSURANCE COMPANY'S NOTICE OF CHANGE OF DATE, TIME AND DEPARTMENT FOR HEARING ON IT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

DEMURRER TO CROSS-COMPLAINANTS GLORIA LOPEZ AND JULIE C. LIM'S CROSS-COMPLAINT; ETC

3/3/2017: DEMURRER TO CROSS-COMPLAINANTS GLORIA LOPEZ AND JULIE C. LIM'S CROSS-COMPLAINT; ETC

DECLARATION OF SHANNON L SANTOS IN SUPPORT OF AMENDED JUDGMENT IN FAVOR OF DEFENDANT ARCH INSURANCE COMPANY ON ALL CLAIMS ASSERTED BY PLAINTIFF

6/1/2017: DECLARATION OF SHANNON L SANTOS IN SUPPORT OF AMENDED JUDGMENT IN FAVOR OF DEFENDANT ARCH INSURANCE COMPANY ON ALL CLAIMS ASSERTED BY PLAINTIFF

APPELLANTS NOTICE DESIGNATING RECORD ON APPEAL

7/10/2017: APPELLANTS NOTICE DESIGNATING RECORD ON APPEAL

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

7/10/2017: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

REPLY DECLARATION OF ROBERT SCOTT SHTOFMAN IN SUPPORT OF SPECIAL MOTION TO STRIKE PURSUANT TO CCP SECTION 425.16

7/19/2017: REPLY DECLARATION OF ROBERT SCOTT SHTOFMAN IN SUPPORT OF SPECIAL MOTION TO STRIKE PURSUANT TO CCP SECTION 425.16

EX PARTE APPLICATION FOR AN ORDER TO CONTINUE THE HEARING DATES ON DEFENDANT JULIE C. LIM'S AND DEFENDANT GLORIA LOPEZ'S MOTIONS FOR SUMMARY JUDGMENT; ETC

7/27/2017: EX PARTE APPLICATION FOR AN ORDER TO CONTINUE THE HEARING DATES ON DEFENDANT JULIE C. LIM'S AND DEFENDANT GLORIA LOPEZ'S MOTIONS FOR SUMMARY JUDGMENT; ETC

DEFENDANT GLORIA LOPEZ AND JULIE C. LIM'S EVIDENTIARY OBJECTION TO THE DECLARATION OF SEBASTIANO BORDONARO, FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CROSS- COMPLAINANT ARCH INSURANCE COMPANY, I

8/8/2017: DEFENDANT GLORIA LOPEZ AND JULIE C. LIM'S EVIDENTIARY OBJECTION TO THE DECLARATION OF SEBASTIANO BORDONARO, FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CROSS- COMPLAINANT ARCH INSURANCE COMPANY, I

CROSS-DEFENDANT GLORIA LOPEZ, JULIE C. LIM'S AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEBASTIANO BORDONARO,; ETC.

8/9/2017: CROSS-DEFENDANT GLORIA LOPEZ, JULIE C. LIM'S AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEBASTIANO BORDONARO,; ETC.

ARCH INSURANCE COMPANY'S RESPONSE TO CROSS-DEFENDANTS' AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF SEBASTIANO BORDONARO AND PAUL WHITE FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF CROS

8/17/2017: ARCH INSURANCE COMPANY'S RESPONSE TO CROSS-DEFENDANTS' AMENDED EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF SEBASTIANO BORDONARO AND PAUL WHITE FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF CROS

613 More Documents Available

 

Docket Entries

  • 07/19/2019
  • Substitution of Attorney; Filed by Julie C. Lim (Defendant); JULIE C. LIM DBA LAW OFFICES OF JULIE (Legacy Party)

    Read MoreRead Less
  • 05/06/2019
  • Notice (to Clerk); Filed by Arch Insurance Group, Inc. (Cross-Complainant)

    Read MoreRead Less
  • 04/19/2019
  • Appeal Record Delivered (APPEAL FILED 8-17-18); Filed by Clerk

    Read MoreRead Less
  • 04/16/2019
  • Appeal - Original Clerk's Transcript 6 - 10 Volumes Certified; Filed by Clerk

    Read MoreRead Less
  • 04/10/2019
  • Appeal - Original Clerk's Transcript 6 - 10 Volumes Certified; Filed by Clerk

    Read MoreRead Less
  • 03/20/2019
  • Appeal - Request for Court-Paid Clerk's Transcript FW-001; Filed by Clerk

    Read MoreRead Less
  • 03/20/2019
  • Appeal - Notice of Fees Due for Clerk's Transcript on Appeal (AMENDED); Filed by Clerk

    Read MoreRead Less
  • 03/08/2019
  • Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by Clerk

    Read MoreRead Less
  • 03/06/2019
  • Appeal - Certificate of Clerk Re: Missing Record For Appeal; Filed by Clerk

    Read MoreRead Less
  • 02/05/2019
  • Appeal Record Delivered (SUPPLEMENTAL); Filed by Clerk

    Read MoreRead Less
1,324 More Docket Entries
  • 03/18/2016
  • Request; Filed by Defendant/Respondent

    Read MoreRead Less
  • 03/18/2016
  • NOTICE THAT ENTIRE ACTION HAS BEEN STAYED PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6201(C)

    Read MoreRead Less
  • 02/26/2016
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 02/26/2016
  • Proof-Service/Summons; Filed by Law Offices of Robert Scott Shtofman (Legacy Party)

    Read MoreRead Less
  • 02/22/2016
  • First Amended Complaint; Filed by Robert Scott Shtofman (Plaintiff); Law Offices of Robert Scott Shtofman (Legacy Party)

    Read MoreRead Less
  • 02/22/2016
  • FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT (AGAINST GLORIA LOPEZ); ETC.

    Read MoreRead Less
  • 02/19/2016
  • Complaint; Filed by null

    Read MoreRead Less
  • 02/19/2016
  • COMPLAINT FOR: 1. BREACH OF CONTRACT (AGAINST GLORIA LOPEZ); ETC

    Read MoreRead Less
  • 02/19/2016
  • SUMMONS

    Read MoreRead Less
  • 01/03/2016
  • Opposition Document; Filed by Robert Scott Shtofman (Plaintiff); Law Offices of Robert Scott Shtofman (Legacy Party)

    Read MoreRead Less

Tentative Rulings

Case Number: BC611057    Hearing Date: April 12, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROBERT SCOTT SHTOFMAN,

Plaintiff,

v.

jULIE C. LIM; ALLIANCE UNITED INSURANCE COMPANY; 21ST CENTURY CENTENNIAL INSURANCE CO.; ARCH INSURANCE GRoUP, INC.; GLORIA LOPEZ., et al.

Defendants.

Case No.: BC611057

Hearing Date: April 12, 2021

[TENTATIVE] order RE:

Plaintiff robert scott shtofman’s motion TO TAX costs

Background

On February 19, 2016, plaintiff Robert Scott Shtofman (“Shtofman”) initiated this action for unpaid attorney’s fees. On May 24, 2016, Plaintiff filed the operative Second Amended Complaint.[1]

On April 11, 2017, Defendants/Cross-Complainants Gloria Lopez and Julie C. Lim (jointly “Cross-Complainants”) filed their corrected First Amended Cross-Complaint. On June 9, 2017, Shtofman filed a special motion to strike the corrected First Amended Cross-Complaint pursuant to Code of Civil Procedure § 425.16. On July 20, 2017, the court (the Hon. David Sotelo) granted Shtofman’s special motion to strike. (Minute Order 7/20/17.)

On July 28, 2017, notice of entry of order on Shtofman’s special motion to strike was filed and served on all parties. On August 21, 2017, Defendants/Cross-Complainants filed an appeal of the court’s order granting the special motion to strike. On October 23, 2019, pursuant to a peremptory challenge, the instant action was transferred to the current department from Department 40. (Minute Order 10/23/19.) On October 23, 2019, the Court of Appeal affirmed the granting of the special motion to strike. On December 23, 2019, the Court of Appeal issued the remittitur.

On September 17, 2020, Cross-Complainants filed four memoranda of costs after judgment as to previously granted sanctions in the instant action that remain unpaid. On September 30, 2020, Shtofman filed the instant motion to tax costs. No opposition or reply was filed.

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs. (Id.)

California Rule of Court, Rule 3.1700 requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).)

For post-judgment costs made in enforcing a judgment, costs are recoverable pursuant to Code of Civil Procedure § 685.070.  “Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.” (CCP § 685.070(c).) “If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.” (Id. at (d).) “There are no exceptions to this rule, and the language of subdivision (d) is mandatory.” (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 146, [italics added].)

Discussion

Shtofman moves to tax cost on the grounds that the claimed interest is improper and that the claimed judgments are subject to set-offs. As an initial matter, the court notes that Judgment Debtor Davies denominates the instant motion as one to tax costs under Code of Civil Procedure section 1033.5. However, motions to tax brought pursuant to Code of Civil Procedure section 1033.5 are applicable only to tax a memorandum of costs filed for costs after prevailing in the underlying action. By contrast, costs incurred in enforcing a judgment are awarded pursuant to Code of Civil Procedure § 685.070, and a motion to tax costs identified in such a memorandum of costs is brought pursuant to Code of Civil Procedure § 685.070(c).

Untimeliness of the Instant Motion as a Motion to Tax Costs after Judgment

Here, the memorandum of costs was filed for costs after judgment, namely the unpaid sanctions awards, pursuant to Code of Civil Procedure § 685.070. This is clearly indicated on the form, Judicial Counsel Form MC-012, itself, which further specifies to Shtofman that a motion to tax cost must be filed within 10 days after service. Here, the four respective proofs of service reflect service of the four memoranda of costs on September 14, 2020 by mail. Thus, even add the five-day extension pursuant to Code of Civil Procedure section 1013, the instant motion to tax costs filed on September 30, 2020 is one day late. As an untimely motion to tax costs, the motion must be denied as pursuant to Code of Civil Procedure § 685.070(c). (See Lucky United Properties Investment, Inc, supra, 185 Cal.App.4th at p.146.)

CONCLUSION AND ORDER

Based on the forgoing, Plaintiff Robert Scott Shtofman’s motion to tax costs is DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: April 12, 2021 ___________________________

Elaine Lu

Judge of the Superior Court


[1] On April 16, 2018, Plaintiff filed a Third Amended Complaint. However, on June 21, 2018, the Court (the Hon. David Sotelo) dismissed the Third Amended Complaint.

Case Number: BC611057    Hearing Date: November 19, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROBERT SCOTT SHTOFMAN,

Plaintiff,

v.

jULIE C. LIM; ALLIANCE UNITED INSURANCE COMPANY; 21ST CENTURY CENTENNIAL INSURANCE CO.; ARCH INSURANCE GRoUP, INC.; GLORIA LOPEZ., et al.

Defendants.

Case No.: BC611057

Hearing Date: November 19, 2020

[TENTATIVE] order RE:

cross-defendant and plaintiff Robert scott shotfman’s motion for attorney’s fees and costs pursuant to ccp § 425.16(c)

Background

On February 19, 2016, plaintiff Robert Scott Shtofman (“Plaintiff”) initiated this action with the filing of the original complaint. On May 24, 2016, Plaintiff filed the operative Second Amended Complaint.[1]

On April 11, 2017, Cross-Complainants/Defendants Gloria Lopez and Julie C. Lim (jointly “Defendants”) filed their corrected First Amended Cross-Complaint. On June 9, 2017, Plaintiff/Cross-Defendant filed a special motion to strike the corrected First Amended Cross-Complaint pursuant to Code of Civil Procedure § 425.16. On July 20, 2017, the court (the Hon. David Sotelo) granted Plaintiff/Cross-Defendant’s special motion to strike. (Minute Order 7/20/17.)

On July 28, 2017, notice of entry of order on Plaintiff’s special motion to strike was filed and served on all parties. On August 21, 2017, Defendants/Cross-Complainants filed an appeal of the court’s order granting the special motion to strike. On October 23, 2019, pursuant to a peremptory challenge, the instant action was transferred to the current department from Department 40. (Minute Order 10/23/19.) On October 23, 2019, the Court of Appeal affirmed the granting of the special motion to strike. On December 23, 2019, the Court of Appeal issued the remittitur.

On February 4, 2020, Plaintiff filed the instant noticed motion pursuant to Code of Civil Procedure § 425.16(c) seeking attorney’s fees incurred in bringing his anti-SLAPP motion and in bringing the instant motion for attorney’s fees. On September 3, 2020, Defendants filed an opposition. On September 17, 2020, Plaintiff filed an amended notice noting a change in the hearing date. On October 7, 2020, Plaintiff filed declarations to support the instant motion for attorney fees. On October 8, 2020, Plaintiff filed an amended memorandum in support of the motion for attorney’s fees. On October 19, 2020, Plaintiff filed a pocket brief regarding the timeliness of the instant motion for attorney fees. On November 5, 2020, Defendants filed an opposition. On November 18. 2020, Plaintiff filed an untimely Declaration of Richard M. Chaskin, Esq. in reply to the declaration of Julie M. Lim.[2]

Electronic Filing

As a preliminary matter, the Court reminds the parties that “[e]lectronic documents must be electronically filed in PDF, text searchable format when technologically feasible without impairment of the document’s image.” (First Amended General Order re Mandatory Electronic Filing for Civil, 5/3/19, [italics added].) Any failure to comply with this aspect of the First Amended General Order in the future may result in the pleading at issue being stricken.

Request for Judicial Notice

Defendants request that the court take judicial notice of certain court records and orders.

As the court may take judicial notice of its own record and records of other courts, (See Evid. Code, § 452(d), (e)), Defendants’ request for judicial notice is granted. However, the Court cannot take judicial notice of the truth of the matter assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees are allowable as costs when authorized by contract, statute, or law, and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5). Code of Civil Procedure section 425.16(c)(1) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (Code Civ. Proc., § 425.16(c)(1).)

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Manner of Seeking Attorney Fees and Reconsideration of the Court’s October 22, 2020 Order

As noted above, a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (Code Civ. Proc., § 425.16(c)(1).)

Prevailing parties have three alternative ways to seek the recovery of their fees under Civ. Proc. Code § 425.16, subdivision (c). (Melbostad v. Fisher (2008) 165 Cal. App. 4th 987, 992.) First, a party may request his or her fees in connection with the trial court’s consideration of the anti-SLAPP motion. (Id.) Second, a party may include the attorney’s fees request as a part of the cost bill filed after entry of judgment. (American Humane Ass’n v. Los Angeles Times Communications (2001) 92 Cal. App. 4th 1095, 1103; Carpenter v. Jack In The Box Corp. (2007) 151 Cal. App. 4th 454, 461.) Third, a party may file a noticed motion for attorney’s fees after receiving a successful ruling on the anti-SLAPP motion. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal. App. 4th 611, 631.)

In this court’s October 22, 2020 order granting Cross-Complainants Lim and Lopez’s motion to tax costs on appeal, the court indicated that it would not award attorney’s fees on appeal by way of the memorandum of costs on appeal filed February 3, 2020 and that it would instead only consider Plaintiff’s request for attorney’s fees by way of noticed motion. (10/22/20 Order p. 4.) In doing so, the court impliedly assumed that inclusion of Cross-Defendant’s attorney fees on appeal in the February 3, 2020 memorandum of costs was improper and that the only way to seek attorney fees was by way of noticed motion. This was an erroneous assumption on the court’s part as the court failed to recognize that pursuant to Melbostad and American Humaine Association, the prevailing party may properly include attorney’s fees as a part of its memorandum of costs, and doing so is an alternative manner by which the prevailing party may seek attorney’s fees. Because different procedural and timeliness requirements apply to a memorandum of costs veruss a noticed motion for attorney’s fees, the court should not have declined to consider the merits of Cross-Complainants Lim and Lopez’s motion to tax costs (including fees) on appeal. The court is now of the view that the court must consider the $160,000 attorney’s fees listed in Cross-Defendant’s February 3, 2020 memorandum of costs, Cross-Complainants Lim and Lopez’s timeliness and other objections to the February 3, 2020 memorandum of costs, and the parties’ arguments on the merits as to Cross-Complainants Lim and Lopez’s motion to tax $160,000 of attorney’s fees on appeal.

Accordingly the Court is inclined to vacate that portion of its October 22, 2020 order granting Cross-Complainants Lim and Lopez’s motion to tax costs as to $160,000 of attorney’s fees on appeal on procedural grounds (page 4, lines 14-23; and page 6, lines 8-13). The court is further inclined to recalendar Cross-Complainants Lim and Lopez’s motion to tax costs as to $160,000 of attorney’s fees on appeal for the continued hearing date of December 8, 2020 at 8:30 am. The parties have already fully briefed Cross-Complainants Lim and Lopez’s motion to tax costs on appeal (including attorney’s fees on appeal), and the court would entertain further oral argument at the December 8, 2020 hearing.

Code of Civil Procedure section 1008 addresses motions for reconsideration and renewal motions. Reconsideration and renewal motions brought by litigants pursuant to section 1008 require the moving party to present new and different facts from those presented in the original motion. (See Code Civ. Proc. § 1008, subds. (a), (b).) Subdivision (e) of Code of Civil Procedure section 1008 “specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions.” The language of section 1008, however, does not restrict a trial court from sua sponte reconsidering its own interim orders. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; see also Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 184 (“[a]mong the judiciary branch’s ‘core’ or ‘essential’ functions is the power to resolve specific controversies between parties and declare the law. It is also a core judicial function to ‘ensure the orderly and effective administration of justice.”).) While Section 1008 is designed to conserve the court’s resources by constraining litigants who would attempt to bring the same motion over and over, these same judicial resources would be wasted if the court could not, on its own motion, review and change its interim rulings. (Case 99 Cal.App.4th at 181.)

Accordingly, on the court’s own motion, the court sets a motion for reconsideration of its October 22, 2020 order granting Cross-Complainants’ motion to tax $160,000 attorney’s fees on appeal solely on procedural grounds (i.e., that the court would rule on the issue of attorney’s fees only as to Cross-Defendant’s noticed motion for attorney’s fees and that the court would decline to rule on the issue of attorney’s fees requested in Cross-Defendant’s memorandum of costs). The court’s sua sponte motion for reconsideration is set for hearing on December 8, 2020 at 8:30 am. Any party opposed to the court’s reconsideration of its October 22, 2020 order on the grounds above must file and serve an opposition to the motion for reconsideration within 10 days. If the court grants its own sua sponte motion for reconsideration, the court would be inclined to consider Cross-Defendant’s request for attorney’s fees on appeal by way of the February 3, 2020 memorandum of costs on appeal as an alternative manner for Cross-Defendant to have requested attorney’s fees.

Timeliness of the Instant Motion

“Under rule 3.1702(b) of the California Rules of Court, a motion seeking fees following an order granting an anti-SLAPP motion must be served and filed within the time limits for filing a notice of appeal. [Citation.] Under rule 8.104(a) and (f), a notice of appeal must be filed on or before 60 days after service of a document entitled ‘Notice of Entry’ of the order granting the anti-SLAPP motion by the superior court clerk or a party; otherwise, the notice of appeal must be filed on or before 180 days after the entry of the order granting the anti-SLAPP motion.” (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 545.) Failure to file within the prescribed period of time, including any extensions, forfeits any costs including attorney’s fees on recovery. (Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.)

Here, the notice of entry of the order granting the anti-SLAPP motion was filed and served on July 28, 2017. (Notice of Entry of Order, 7/28/17.) The time for filing an appeal lapsed 60 days later, on September 26, 2017. Cross-Defendants did not file the instant motion for attorney fees until February 4, 2020 -- 921 days after service of the notice of entry of order. The motion is therefore untimely.

Plaintiff/Cross-Defendant contends that this motion is nonetheless timely. In support of this contention, Plaintiff cites to Melbostad v. Fisher (2008) 165 Cal.App.4th 987; American Humane Ass'n v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095; and Doe v. Luster (2006) 145 Cal.App.4th 139. These authorities provide that “the party prevailing on a special motion to strike may seek an attorney fees award through three different avenues: simultaneously with litigating the special motion to strike, by a subsequent noticed motion, or as part of a cost memorandum at the conclusion of the litigation.” (Melbostad, supra, 165 Cal.App.4th at p.992.) Each of these cases relies on Code of Civil Procedure § 1033.5(c)(5), which provides that “[a]ttorney's fees allowable as costs pursuant to … [statute] … may be fixed as follows: (i) upon a noticed motion, (ii) at the time a statement of decision is rendered, (iii) upon application supported by affidavit made concurrently with a claim for other costs, or (iv) upon entry of default judgment.” (Ibid.) Critically, though section 1033.5(c)(5) provides multiple methods for a prevailing party to seek attorney fees, it does not specify when such a request for fees must be made for each manner. Rather, a prejudgment cost, allowable under Code of Civil Procedure § 1033.5 such as a motion for attorney fees “shall be claimed and contested in accordance with rules adopted by the Judicial Council.” (CCP § 1034(a); see also American Humane Ass'n, supra, 92 Cal.App.4th at p.1102 [explaining in detail the reasoning behind the different avenues available for attorney fees pursuant to a prevailing party in an anti-SLAPP motion].) Thus, California Rules of Court, Rule 3.1702(b)(1) provides the time to file a motion for attorney fees as discussed above.

Cross-Defendant’s reliance on Melbostad, American Humane Ass'n, and Doe v. Luster, is misplaced. These cases stand for the proposition that Cross-Defendant may seek attorney’s fees by pursuing any of the three avenues set forth in Code of Civil Procedure § 1033.5(c)(5). In doing so, however, Cross-Defendant must still abide by the procedural rules and time limits that apply to that particular manner of seeking attorney’s fees. Nothing in Melbostad, American Humane Ass'n, and Doe v. Luster suggests that Cross-Defendant may mix and match the deadline for one manner of seeking attorney’s fees with the deadline for another manner of seeking attorney’s fees. In ruling on the timeliness of the instant motion for attorney’s fees, the court must look to Rule 3.1702(b) of the California Rules of Court, which governs noticed motions for attorney’s fees. The court may not borrow the deadline for filing a memorandum of costs or apply the deadline for memoranda of costs to the filing of the instant motion.

In his pocket brief, Cross-Defendant also cites Daniels v. Robbins (2010) 182 Cal.App.4th 204, for the proposition that because the July 20, 2017 minute order granting the anti-SLAPP was not a judgment, the entire action was not resolved, and thus, the time limit to file a motion for attorney fees had not yet begun to run. (Pocket Brief p.3:20-28.) However, the court in Daniels only discussed the time to file a memorandum of costs pursuant to California Rules of Court, Rule 3.1700 as the “[opposing party] d[id] not challenge the attorney fees award.” (Daniels, supra, 182 Cal.App.4th at p.229.) Moreover, the court in Daniels expressly noted that the time to file a motion to claim attorney fees is governed by California Rules of Court, Rule 3.1702(b)(1). (Id. at p.229 fn.8.)

Similarly, the court in American Humane Ass’n specifically noted that “the time for making the attorney fee motion is extended to the time frames for filing a notice of appeal[.]” (American Humane Ass'n, supra, 92 Cal.App.4th at p.1103.)

Thus, Cross-Defendant was required to file his noticed motion for attorney’s fees incurred in filing the anti-SLAPP motion within the time for filing a notice of appeal. His failure to do so means that his motion for attorney’s fees is untimely.[3] Thus, the instant motion is denied.

Motion to Tax Costs

On October 7, 2020, Cross-Defendants filed a memorandum of costs including a request for attorney fees in an amount “TBD.” On October 27, 2020, Cross-Complainants filed a motion to tax the October 7, 2020 memorandum of costs, which is currently set to be heard on April 12, 2021 at 8:30 am.

For the reasons stated above, the court will consider Cross-Defendants’ requests for attorney’s fees by way of the October 27, 2020 memorandum of costs on appeal, as an alternative manner in which Cross-Defendants are seeking attorney’s fees. In connection with this motion to tax costs, the court requests that the parties fully brief the issue of timeliness pursuant to California Rules of Court, Rule 3.1700.

Order to Show Cause

Plaintiff filed and served a Third Amended Complaint (“TAC”) on April 16, 2018. On June 21, 2018, the court (the Hon. David Sotelo) dismissed the TAC. Therefore, the operative complaint is the Second Amended Complaint filed on May 24, 2016. All remaining defendants have answered to the SAC. Accordingly, the OSC set for today is discharged.

CONCLUSION AND ORDER

Based on the forgoing, Cross-Defendant Robert Shtofman’s motion for attorney’s fees pursuant to Code of Civil Procedure § 425.16 is DENIED as untimely. The court will address Cross-Defendant Robert Shtofman’s request for attorney’s fees contained within his memorandum of costs filed October 7, 2020 at the hearing on Cross-Complainants’ motion to tax costs.

Moving Party is to serve this order on all parties.

DATED: November 19, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] On April 16, 2018, Plaintiff filed a Third Amended Complaint. However, on June 21, 2018, the Court (the Hon. David Sotelo) dismissed the Third Amended Complaint.

[2] The court will, in its discretion, consider Chaskin’s untimely filed declaration. The court notes that consideration of the untimely declaration will not affect the outcome of the court’s ruling.

[3] While not disputed by the parties, the deadline to file the claim for attorney fees was not stayed by the Notice of Appeal by Defendants as an attorney’s fee award, as a cost award, is collateral to the final judgment. (Maria P. v. Riles (1987) 43 Cal.3d. 1281, 1289.) Accordingly, the trial court retained collateral jurisdiction to award attorney’s fees even after the losing party has filed a Notice of Appeal. (Hennessy v. Superior Court of California in and for City and County of San Francisco (1924) 194 Cal. 368, 371.)

Case Number: BC611057    Hearing Date: October 22, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROBERT SCOTT SHTOFMAN,

Plaintiff,

v.

jULIE C. LIM; ALLIANCE UNITED INSURANCE COMPANY; 21ST CENTURY CENTENNIAL INSURANCE CO.; ARCH INSURANCE GRUP, INC.; GLORIA LOPEZ., et al.

Defendants.

Case No.: BC611057

Hearing Date: October 22, 2020

[TENTATIVE] order RE:

CROSS-COMPLAINANTS AND DEFENDANTS JULIE C. LIM AND GLORIA LOPEZ’S MOTION TO TAX CROSS-DEFENDANT Robert scott shotfman’s motion for attorney’s fees and costs

Background

On February 19, 2016, plaintiff Robert Scott Shtofman (“Plaintiff”) initiated this action with the filing of the original complaint. On April 16, 2018, Plaintiff filed the operative third amended complaint.

On April 11, 2017, Cross-Complainants/Defendants Gloria Lopez and Julie C. Lim (jointly “Defendants”) filed their corrected First Amended Cross-Complaint. On June 9, 2017, Plaintiff filed a special motion to strike the corrected First Amended Cross-Complaint pursuant to Code of Civil Procedure § 425.16. On July 20, 2017, the court (the Hon. David Sotelo) granted Plaintiff/Cross-Defendant’s special motion to strike. (Minute Order 7/20/17.) On July 28, 2017, notice of entry of order on Plaintiff’s special motion to strike was filed and served to all parties. On August 21, 2017, Defendants/Cross-Complainants filed an appeal of the court’s order granting the special motion to strike. On October 23, 2019, pursuant to peremptory challenge, the instant action was transferred to the current department from Department 40. (Minute Order 10/23/19.) On October 23, 2019, the Court of Appeal affirmed the granting of the special motion to strike. On December 23, 2019, the Court of Appeal issued the remittitur.

On February 4, 2020, Plaintiff filed a motion for attorney’s fees and costs on appeal pursuant to Code of Civil Procedure § 425.16. On February 24, 2020, Defendants filed the instant motion to tax costs. On October 7, 2020, Plaintiff filed an opposition. On October 15, 2020, Defendants filed a reply.

Electronic Filing

As a preliminary matter, the Court reminds the parties that “[e]lectronic documents must be electronically filed in PDF, text searchable format when technologically feasible without impairment of the document’s image.” (First Amended General Order re Mandatory Electronic Filing for Civil, 5/3/19, [italics added].) Any failure to comply with this aspect of the First Amended General Order in the future may result in the pleading at issue being stricken.

Request for Judicial Notice

Defendants request that the court take judicial notice of:

  1. The Substitution of Attorney signed by Gloria Lopez on January 15, 2014, in the matter of Gloria Lopez v. Jin Seok Chai, et al., Los Angeles Superior Court Case No. BC517067

  2. The Ruling signed and dated by The Honorable David Sotelo on March 27, 2017, in the instant action

  3. The Minute Order dated April 4, 2017, in the instant action

  4. The Minute Order dated April 13, 2017, in the instant action

  5. The Minute Order dated May 25, 2017, in the instant action

  6. The Minute Order dated July 10, 2018, in the instant action

  7. The Order After Ex Parte, dated July 19, 2018, in the instant action

  8. The Notice of Lien, in the matter of Applied Analysis and Technology, Inc. v. Robert F. Shtofman, Orange County Superior Court Case No. 30-2010-00338991-CJ

  9. The Notice of Entry of Order On Plaintiff’s Special Motion to Strike Pursuant to CCP Section 425.16, in the instant action

  10. The Memorandum of Costs (Summary), dated October 6, 2020 in the instant action

  11. The Notice of Motion and Cross-Defendant Robert Scott Shtofman’s Motion for Attorney's Fees and Costs Pursuant to CCP 425.16(c) in the instant action

  12. The Amended Notice of Motion and Motion for Attorney’s Fees and Costs awarded on Appeal Filed September 17, 2020 in the instant action

As the court may take judicial notice of its own record and records of other courts, (See Evid. Code, § 452(d), (e)), Defendants’ request for judicial notice is granted. However, the Court cannot take judicial notice of the truth of the matter assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs. (Id.)

California Rule of Court, Rule 3.1700 requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).)

Discussion

Improper Motion

Defendants contend that the motion to tax costs should be granted against Plaintiff’s February 4, 2020 Motion for Attorney Fees on Appeal on the grounds that Plaintiff “(1) did not timely file his Motion for Attorney’s Fees and Costs, (2) failed to support his fee motion with any evidence whatsoever, (3) failed to demand an amount of attorney’s fees, and (4) is not entitled to attorney’s fees and costs as a matter of law.” (Notice of Motion p.2:8-14.)

“After judgment is entered, the prevailing party has a certain period of time to serve and file a memorandum of costs and separate motion for attorney fees. (Cal. Rules of Court, rules 3.1700(a)(1) & 3.1702(b).) In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) At the hearing on the motions, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. [Citation.] This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.)

Here, Defendants do not challenge a memorandum of costs but rather the Motion for Attorney fees. The rationale for Rule 3.1700 is clear as there is no other procedure for challenging a Memorandum of Costs. Here, however, Defendants do not challenge a memorandum of costs. Instead, Defendants challenge a Motion for Attorney Fees. The rationale for Rule 3.1700 does not apply to a Motion for Attorney Fees as Defendants may simply file an opposition to Plaintiff’s noticed motion for attorney’s fees. Defendants have provided no other basis as to why this motion should be deemed procedurally proper. Therefore, Rule 3.1700 does not provide a basis to challenge a motion for attorney fees. Any objections that Defendants/Cross-Defendants wish to lodge to Plaintiff’s motion for attorney fees should be filed as an opposition to Plaintiff’s noticed motion for attorney fees.[1]

CONCLUSION AND ORDER

Based on the forgoing, Defendants Julie C. Lim and Gloria Lopez’s motion to tax Plaintiff Robert Scott Shtofman’s motion for Attorney’s Fees and Costs on Appeal is DENIED. The court denies the instant motion solely on procedural grounds, and the court does not reach the merits of Defendants/Cross-Defendants’ arguments. The denial of the instant motion to tax is without prejudice for Defendants/Cross-Defendants to raise all the same arguments and objections in their opposition to Plaintiff’s Motion for Attorney’s Fees.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: October 22, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] In particular, the court invites all parties to brief in greater detail the timeliness of Plaintiff’s motion for attorney fees. “Under rule 3.1702(b) of the California Rules of Court, a motion seeking fees following an order granting an anti-SLAPP motion must be served and filed within the time limits for filing a notice of appeal. [Citation.] Under rule 8.104(a) and (f), a notice of appeal must be filed on or before 60 days after service of a document entitled ‘Notice of Entry’ of the order granting the anti-SLAPP motion by the superior court clerk or a party; otherwise, the notice of appeal must be filed on or before 180 days after the entry of the order granting the anti-SLAPP motion.” (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 545.) Failure to file within the prescribed period of time, including any extensions forfeits any costs including attorney’s fees on recovery. (Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.) When the parties file their oppositions and replies in connection with Plaintiff’s motion for attorney’s fees, they should brief these authorities and any other authorities that their research reveals relating to issues of timeliness. The parties should note that their briefs should address attorney’s fees incurred during two time periods: (1) litigation of the anti-SLAPP motion before the trial court, and (2) the appeal of the trial court’s ruling on the anti-SLAPP motion. With respect to the first of these two periods, the parties should brief any authorities that address whether the pendency of an appeal stays or extends the deadline by which a prevailing party must move for attorney’s fees incurred before the trial court.

Case Number: BC611057    Hearing Date: October 20, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROBERT SCOTT SHTOFMAN,

Plaintiff,

v.

jULIE C. LIM; ALLIANCE UNITED INSURANCE COMPANY; 21ST CENTURY CENTENNIAL INSURANCE CO.; ARCH INSURANCE GRUP, INC.; GLORIA LOPEZ., et al.

Defendants.

Case No.: BC611057

Hearing Date: October 20, 2020

[TENTATIVE] order RE:

CROSS-COMPLAINANTS AND DEFENDANTS JULIE C. LIM AND GLORIA LOPEZ’S MOTION TO TAX CROSS-DEFENDANT

Background

On February 19, 2016, plaintiff Robert Scott Shtofman (“Plaintiff”) initiated this action with the filing of the original complaint. On April 16, 2018 Plaintiff filed the operative third amended complaint.

On April 11, 2017, Cross-Complainants/Defendants Gloria Lopez and Julie C. Lim (jointly “Defendants”) filed their corrected First Amended Cross-Complaint. On June 9, 2017, Plaintiff filed a special motion to strike the corrected First Amended Cross-Complaint pursuant to Code of Civil Procedure § 425.16. On July 20, 2017, the court (the Hon. David Sotelo) granted Plaintiff/Cross-Defendant’s special motion to strike. (Minute Order 7/20/17.) On July 28, 2017, notice of entry of order on Plaintiff’s special motion to strike was filed and served to all parties. On August 21, 2017, Defendants/Cross-Complainants filed an appeal of the court’s order granting the special motion to strike. On October 23, 2019, pursuant to a peremptory challenge, the instant action was transferred to the current department from Department 40. (Minute Order 10/23/19.) On October 23, 2019, the Court of Appeal affirmed the granting of the special motion to strike. On December 23, 2019, the Court of Appeal issued the remittitur.

On February 4, 2020, Shtofman filed a motion for attorney’s fees and costs pursuant to Code of Civil Procedure § 425.16. On February 24, 2020, Defendants filed the instant motion to tax costs. On October 7, 2020, Plaintiff filed an opposition. On October 13, 2020, Defendants filed a reply.

Electronic Filing

As a preliminary matter, the Court reminds the parties that “[e]lectronic documents must be electronically filed in PDF, text searchable format when technologically feasible without impairment of the document’s image.” (First Amended General Order re Mandatory Electronic Filing for Civil, 5/3/19, [italics added].) Any failure to comply with this aspect of the First Amended General Order in the future may result in the pleading at issue being stricken.

Request for Judicial Notice

Defendants request that the court take judicial notice of:

  1. The Substitution of Attorney signed by Gloria Lopez on January 15, 2014, in the matter of Gloria Lopez v. Jin Seok Chai, et al., Los Angeles Superior Court Case No. BC517067

  2. The Ruling signed and dated by The Honorable David Sotelo on March 27, 2017, in the instant action

  3. The Minute Order dated April 4, 2017, in the instant action

  4. The Minute Order dated April 13, 2017, in the instant action

  5. The Minute Order dated May 25, 2017, in the instant action

  6. The Minute Order dated July 10, 2018, in the instant action

  7. The Order After Ex Parte, dated July 19, 2018, in the instant action

  8. The Notice of Lien, in the matter of Applied Analysis and Technology, Inc. v. Robert F. Shtofman, Orange County Superior Court Case No. 30-2010-00338991-CJ

  9. The Notice of Entry of Order On Plaintiff’s Special Motion to Strike Pursuant to CCP Section 425.16, in the instant action

  10. The Memorandum of Costs (Summary), dated October 6, 2020 in the instant action

  11. The Notice of Motion and Cross-Defendant Robert Scott Shtofman's Motion for Attorney's Fees and Costs Pursuant to CCP 425.16(c) in the instant action

As the court may take judicial notice of its own record and records of other courts, (See Evid. Code, § 452(d), (e)), Defendants’ request for judicial notice is granted. However, the Court cannot take judicial notice of the truth of the matter assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue, and the burden of proof is on the party claiming them as costs. (Id.)

California Rule of Court, Rule 3.1700 requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).)

Discussion

Improper Motion

Defendants contend that the motion to tax costs should be granted against Plaintiff’s February 4, 2020 Motion for Attorney Fees on the grounds that Plaintiff “(1) did not timely file his Motion for Attorney’s Fees and Costs, (2) failed to support his fee motion with any evidence whatsoever, (3) failed to demand an amount of attorney’s fees, and (4) is not entitled to attorney’s fees and costs as a matter of law.” (Notice of Motion p.2:8-14.)

“After judgment is entered, the prevailing party has a certain period of time to serve and file a memorandum of costs and separate motion for attorney fees. (Cal. Rules of Court, rules 3.1700(a)(1) & 3.1702(b).) In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) At the hearing on the motions, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. [Citation.] This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.)

The rationale for Rule 3.1700 is clear as there is no other procedure for challenging a Memorandum of Costs. Here, however, Defendants do not challenge a memorandum of costs. Instead, Defendants challenge a Motion for Attorney Fees. The rationale for Rule 3.1700 does not apply to a Motion for Attorney Fees as Defendants may simply file an opposition to Plaintiff’s noticed motion for attorney’s fees. Defendants have provided no other basis as to why this motion should be deemed procedurally proper. Therefore, Rule 3.1700 does not provide a basis to challenge a motion for attorney fees. Any objections that Defendants/Cross-Defendants wish to lodge to Plaintiff’s motion for attorney fees should be filed as an opposition to Plaintiff’s noticed motion for attorney fees.

CONCLUSION AND ORDER

Based on the forgoing, Defendants Julie C. Lim and Gloria Lopez’s motion to tax Plaintiff Robert Scott Shtofman’s motion for Attorney’s Fees and Costs is DENIED. The court denies the instant motion solely on procedural grounds, and the court does not reach the merits of Defendants/Cross-Defendants’ arguments. The denial of the instant motion to tax is without prejudice for Defendants/Cross-Defendants to raise all the same arguments and objections in their opposition to Plaintiff’s Motion for Attorney’s Fees.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: October 20, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where MURCHISON & CUMMING LAW OFFICES OF is a litigant

Latest cases where Arch Insurance Group, Inc. is a litigant

Latest cases where TEST PARTY FOR TRUST CONVERSION is a litigant

Latest cases where ALLIANCE UNITED INSURANCE COMPANY CORP is a litigant